Kerala High Court
B. Ramachandran Pillai vs Food Corporation Of India on 23 May, 1975
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 4TH DAY OF FEBRUARY 2016/15TH MAGHA, 1937
WP(C).No. 6701 of 2004 (W)
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PETITIONER:
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B. RAMACHANDRAN PILLAI,
ASSISTANT GRADE-II (DEPOT),
FOOD STORAGE DEPOT,
FOOD CORPORATION OF INDIA,
KARUNAGAPPALLY.
BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
RESPONDENTS:
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1. FOOD CORPORATION OF INDIA,
REPRESENTED BY ITS MANAGING DIRECTOR,
16/20, BARAKHAMBA LANE,
NEW DELHI-110 001.
2. MANAGING DIRECTOR,FOOD CORPORATION OF INDIA,
16/20, BARAKHAMBA LANE, NEW DELHI-110 001.
3. THE ZONAL MANAGER,FOOD CORPORATION OF INDIA,
ZONAL OFFICE,NO.II HADDOWS ROAD,
CHENNAI-600 006.
4. SENIOR REGIONAL MANAGER,FOOD CORPORATION OF INDIA,
REGIONAL OFFICE,KESAVADASAPURAM,
THIRUVANANTHAPURAM,PIN-695 004.
R, BY ADV. SRI.T.P.M.IBRAHIM KHAN, SC, FCI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.01.2016, ALONG WITH WPC. 37272/2003, THE COURT ON 04.02.2016 DELIVERED THE
FOLLOWING:
WP(C).No. 6701 of 2004 (W) ::2::
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE RELEVANT EXTRACT OF THE ORDER NO.211/75-E.1 (KERALA)
DATED 23.5.1975 OF THE ZONAL MANAGER,MADRAS.
EXHIBIT P2: TRUE COPY OF THE LETTER NO.13.3.79-S.CELL DATED 10.2.1979.
EXHIBIT P2(A): TRUE COPY OF THE RELEVANT EXTRACT OF THE APPENDED SENIORITY LIST.
EXHIBIT P3: TRUE COPY OF THE RELEVANT EXTRACT OF THE ORDER NO. 462/90/ESTT.1
DATED 26.11.1990 OF THE ZONAL MANAGER, MADRAS.
EXHIBIT P4: TRUE COPY OF THE LETTER NO.5(18)(9)-SC DATED 27.11.1990N OF THE ZONAL
MANAGER, MADRAS.
EXHIBIT P4(A): TRUE COPY OF THE RELEVANT EXTRACT OF THE APPENDED SENIORITY LIST.
EXHIBIT P5: TRUE COPY OF THE OFFICE ORDER NO.43/99/ESTT.1 DATED 3.3.1999 OF THE
ZONAL MANAGER, MADRAS.
EXHIBIT P6: TRUE COPY OF THE LETTER NO.5/10/2000-SEN.CELL. DATED 31.5.2000 OF THE 3RD
RESPONDENT.
EXHIBIT P6(A): TRUE COPY OF THE RELEVANT EXTRACT OF THE APPENDED SENIORITY LIST.
EXHIBIT P7: TRUE COPY OF THE LETTER NO.5(19)-SEN.CELL. DATED 21.5.99 OF THE 3RD
RESPONDENT.
EXHIBIT P7(A): TRUE COPY OF THE RELEVANT EXTRACT OF THE APPENDED SENIORITY LIST.
EXHIBIT P8: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.10972/90-F.
EXHIBIT P9: TRUE COPY OF THE LETTER NO.5/4/99/SEN.CELL DATED 10.9.99 OF THE 3RD
RESPONDENT.
EXHIBIT P9(A): TRUE COPY OF THE RELEVANT EXTRACT OF THE APPENDED SENIORITY LIST.
EXHIBIT P9(B): TRUE COPY OF THE RELEVANT EXTRACT OF THE APPENDED SENIORITY LIST.
EXHIBIT P10: TRUE COPY OF THE LETTER NO.E.I/2(15)/99 DATED 19.6.2000 OF THE 3RD
RESPONDENT.
WP(C).No. 6701 of 2004 (W) ::3::
EXHIBIT P11: TRUE COPY OF THE LETTER NO.HQ.EP-30(3)/92-VOL.II DATED 14/17.8.2000 OF THE
3RD RESPONDENT.
EXHIBIT P12: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.20038/2000-I.
EXHIBIT P13: TRUE COPY OF THE RELEVANT EXTRACT OF THE OFFICE ORDER
NO.134/2001/E.1 DATED 12.4.2001 OF THE ZONAL MANAGER(SOUTH).
EXHIBIT P14: TRUE COPY OF THE RELEVANT EXTRACT OF THE ORDER NO. 135/2001/E.1
DATED 12.4.2001 OF THE 3RD RESPONDENT.
EXHIBIT P15: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A.1084/2001.
EXHIBIT P16: TRUE COPY OF THE REPRESENTATION DATED 27.2.2002 SUBMITTED BY THE
PETITIONER BEFORE THE RESPONDENTS 2 AND 3.
EXHIBIT P17: TRUE COPY OF THE LETTER NO.ESTT.2(5)/2001-I DATED 16.4.2002 OF THE SENIOR
REGIONAL MANAGER, FCI, THIRUVANANTHAPURAM.
EXHIBIT P18: TRUE COPY OF THE PROCEEDINGS NO.WRC.1/4(2)/2002/DO KOLLAM DATED
21/25.3.2002 OF THE SENIOR REGIONAL MANAGER, THIRUVANANTHAPURAM.
EXHIBIT P19: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.NO.24844 OF
2002-G.
EXHIBIT P20: TRUE COPY OF THE ORDER NO.E.I/30/7/2002 DATED 11.11.2003 OF THE 3RD
RESPONDENT.
EXHIBIT P21: TRUE COPY OF THE MEMORANDUM OF APPEAL IN W.A.NO.1084/01.
EXHIBIT P22: TRUE COPY OF THE ORDER NO.E.I/30(2)/99 DATED 21.3.2000 OF THE 3RD
RESPONDENT.
EXHIBIT P23: TRUE COPY OF THE ORDER NO.319/77-ESTT.I DATED 14.12.1977 OF THE ZONAL
MANAGER, MADRAS.
EXHIBIT P24: TRUE COPY OF THE LETTER NO.BKNKS/ZC(S)/2004 DATED 7.6.2004 OF THE
ZONAL SECRETARY (SOUTH) OF BHARATHIYA KHADYA NIGAM KARMACHARI SANGH.
RESPONDENTS EXHIBITS:
EXT.R4(A): PHOTOSTAT COPY OF THE ORDER OF THIS HON'BLE COURT DT 9.4.2001 IN C.M.P
NO. 2464/2001
EXT.R4(B): PHOTOSTAT COPY OF THE MINUTES OF THE MEETING OF ZONAL PROMOTION
COMMITTEE
EXT.R4(C): PHOTOSTAT COPY OF HTE STATEMENT SHOWING THE NUMBER OF POSTS
FILLED FROM ASSISTANT GRADE III (D) TO ASSITANT GR. II(D) AND ASSISTANT GRADE II(D)
TO ASSISTANDE I (D) THE SAID ZONAL PROMOTION COMMITTEE MEETING.
TRUE COPY
P. A TO JUDGE
jma
K. VINOD CHANDRAN, J
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W.P(C) Nos.6701 of 2004 & 37272 of 2003
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Dated this the 04th day of February, 2016
J U D G M E N T
Seemingly two different issues of seniority are interlinked insofar as the judgment of the Hon'ble Supreme Court reported in Food Corporation of India v. Om Prakash Sharma (AIR 1998 SC 2682), having resulted in a revision of seniority. Though not a direct consequence of the principle decided by the Hon'ble Supreme Court, the revision made directly affected the seniority position of the petitioners in both the writ petitions resulting in their reversion to the post of Assistant Grade II from the post of Assistant Grade I. At the outset, it is to be noticed that the petitioner in W.P(C) No. 6701/2004 has been diligently agitating the issue. But, however, the petitioners in W.P(C) No. 37272/2003 are persons who were fence-sitters, who sought to agitate their cause after a judgment in a case filed by the other petitioner; who did not pursue their remedy after that. Hence, the W.P(C) No.6701/2004 & 37272/2003 ::2::
documents and the facts are referred to from W.P(C) No.6701/2004.
2. The petitioner B.Ramachandran Pillai joined the Food Corporation of India (for short "the FCI") as a watchman on 31.03.1972. He was promoted to the post of Assistant Grade III (Depot) by Ext.P1 dated 23.05.1975. As per Ext.P3 dated 26.11.1990 he was further promoted to the post of Assistant Grade II, with retrospective effect from 22.12.1978. Again, as per Ext.P5 dated 03.03.1999, the petitioner was promoted retrospectively from 10.10.1995 as Assistant Grade I. It is to be noticed that the retrospective promotions were notional, and were effected on the basis of the available vacancies. Subsequently by Ext.P7(a) dated 31.03.1999, a revision was effected to the seniority of the persons in the three grades of Assistants which resulted in the reversion of the petitioner. The petitioner challenged the same as illegal and the FCI sought to support the reversion on the basis of the Supreme Court decision above referred.
W.P(C) No.6701/2004 & 37272/2003 ::3::
3. The decision of the Hon'ble Supreme Court in Om Prakash Sharma (supra) was with respect to the 30th amendment made to F.C.I (Staff) Regulations 1976 and the 43rd amendment made to the F.C.I (Staff) Regulation, 1977 relating respectively to the General Administration Cadre and the Godown Cadre. The fight was between graduates and non-graduates, when amendments were brought in prescribing different periods of service for graduates and non-graduates, for promotion to AG-III, then AG-II and AG-I. The graduates were given a fast track by prescribing three years experience, while the non-graduates were prescribed with a minimum eligibility of five years experience.
Even before the amendments were brought in, a circular was issued to the same effect. The validity of the amendments were challenged before the High Court of Kerala and the amendments were set aside. Though the Corporation filed writ appeals, they were withdrawn. One of the graduates who was a respondent in W.P(C) No.6701/2004 & 37272/2003 ::4::
the writ petition had filed a writ appeal which was pending.
4. In the meanwhile, there was a decision of the Andhra Pradesh High Court on an identical challenge, which was decided following the judgment of the High Court of Kerala. The matter went up to the Supreme Court and the judgment was upheld.
Again, an identical petition was filed by certain non-graduates before the High Court of Madras, which writ petition was dismissed on the ground that the matter was pending before the Kerala High Court. In the Writ Appeal filed by the non-graduates, the Corporation filed an affidavit that the amendments would be withdrawn, accepting the decision of the Andhra Pradesh High Court. Subsequently, when the writ appeal filed by a graduate, came up before the Kerala High Court, noticing the undertaking made by the FCI before the Madras High Court, the petitioners in the writ petitions, the non-graduates sought withdrawal of the writ petition itself, which was allowed. A similar matter from the High W.P(C) No.6701/2004 & 37272/2003 ::5::
Court of Punjab and Haryana which had reached the Hon'ble Supreme Court was considered in the reported decision, along with the petitions under Article 32 filed directly before the Supreme Court.
5. The Hon'ble Supreme Court noticing all the aforesaid facts specifically directed the respondent to substantiate the contention that a different yardstick, as far as experience was required; with reference to the duties in the respective cadres.
After an affidavit was filed by the FCI, the Hon'ble Supreme Court came to the conclusion that nothing was placed on record to justify the classification between graduates and non-graduates. Quite a few decisions of the Apex Court were noticed by the Bench considering the issue, to hold that it is a settled position that the educational qualification is a proper basis of classification for promotion. But, however, it was also held that the validity of such classification has to be judged on the facts and circumstance of W.P(C) No.6701/2004 & 37272/2003 ::6::
each case.
6. Looking at the affidavits filed by the FCI, the Court found that in that case, no material had been placed before them by the FCI to justify the amendments introducing the classification between graduates and non graduates. The bench also noticed the conduct of the FCI, which chose to accept the judgment of the Andra Pradesh High Court and the decision taken by the Board of the FCI to withdraw the amendments, which was undertaken before the High Courts of Kerala and Madras. An affidavit filed before the Hon'ble Supreme Court also disclosed the decision of the Board to withdraw the amendments. In that circumstance, the Hon'ble Supreme Court held that the amendments to the regulations making a differentiation between graduates and non-graduates, to the post of AG-I and AG-II offends the equality clause and struck it down as unconstitutional. In the meanwhile promotions were made which also had some bearing in the present W.P(C) No.6701/2004 & 37272/2003 ::7::
controversy.
7. As was noticed, the petitioner had been given retrospective promotion notionally as per Exts.P3 and P5. The entire issue arose since the petitioner who was promoted as AG-III on 23.05.1975 beyond the quota reserved for promotions, was promoted as AG-II with effect from 22.12.1978, notionally. The petitioners contention is that the persons who had been appointed later to him in AG-III stole a march over the petitioner when such seniority was revised on 31.03.1999.
8. To understand the issue, one has to look at Ext.P15 judgment of this Court in a Writ Appeal filed by the petitioner herein. Therein it was noticed that the FCI Staff Regulations, 1971 postulates three grades in the category of Assistants, being Grades I, II and III and the method of appointment to the post of Grade III is from Class IV and direct recruits in the ratio of 9:1. There was a number of vacancies in the category of Assistant Grade II coming W.P(C) No.6701/2004 & 37272/2003 ::8::
to around 2975 and there was a ban on direct recruitment at that point of time. It is only for reason of such ban that the Grade IV employees were promoted en-mass to the post of Assistant Grade III. The ban was lifted in the year 1976 and there were direct recruitments made. These were the persons who stole a march over the petitioners.
9. Admittedly in the interregnum, there was this dispute with respect to the amendments which arose initially by the circular dated 01.05.1975 (as noticed in Om Prakash Sharma (supra)) and then the 30th and 43rd amendments referred to above, which were notified respectively on 22.04.1976 and 10.02.1997 with retrospective effect from 01.05.1974. This definitely created a situation where the graduates stole a march over the non-graduates. The petitioner herein admittedly is a non-graduate, hence if at all a seniority revision is made on the direction of the Hon'ble Supreme Court that cannot affect him adversely.
W.P(C) No.6701/2004 & 37272/2003 ::9::
However, when making such revision, the other aspect as to the persons having been promoted from Class IV to Assistant Grade III far beyond the ratio assumed significance.
10. The judgment of the Hon'ble Supreme Court did not affect the petitioners seniority especially since the writ petitions filed before the Kerala High Court was allowed and the amendments had no application at least to the southern region after the judgment on 22.02.1983. But at the same time there was an issue brewing before this Court with respect to the inter se seniority of direct recruits to the post of Assistants Grade III and those promoted from Class IV, like the petitioners herein. The direct recruits filed writ petition O.P. 20038 of 2000 claiming seniority over the promotees in accordance with Rule 16 (3) of the FCI (Staff) Regulations, 1986.
11. This Court has called for the judges papers of that case disposed of by Ext.P12. Rule 16(3), as on that date, available in W.P(C) No.6701/2004 & 37272/2003 ::10::
the judges papers read as under:
"R.16(3) : The relative seniority of Direct
Recruits and promotees:
The relative seniority of direct recruits and promotees will be determined according to the relation of the vacancies as between direct recruits and promotees as based on the quotas reserved for direct recruitment and promotion respectively"
12. The promotion retrospectively made of the promotees to the post of Assistant Gr II and Grade I was said to be over looking the seniority of the direct recruits. The judgment at Ext. P12 though directed implementation of a communication directing adjustments, with reference to the quota, the same was interfered with by the Division Bench in Ext.P15.
13. Ext.P15 is a judgment of the Division Bench which W.P(C) No.6701/2004 & 37272/2003 ::11::
dismissed the writ petitions, but however, kept open the remedy of any one aggrieved, to approach the FCI with a suitable representation. The direction to implement the inter departmental communication (Ext.P13, produced in that O.P), as directed in Ext.P12 judgment of the learned Single Judge, from which the appeal was filed, was set aside for reason of Ext.P13 being an inter-departmental communication. It was also held that anyone basing their claims on that communication can take up the matter before the appropriate authority. Ext.P13 in the said original petition was one in favour of the direct recruits and in accordance with R.16(4).
14. The petitioners in W.P(C) No.37272/2003 obviously filed their representations produced as Ext.P16 to Ext.P16(l) in the writ petition on the basis of the directions in the writ appeal filed by the petitioner in the other writ petition. In fact, the direction was only to persons who claim under Ext.P13, which obviously the W.P(C) No.6701/2004 & 37272/2003 ::12::
persons who made representation did not have since they were promotee-non-graduates from Class IV.
15. In any event, the issue was considered as far as B Ramachandran Pillai was concerned, who was the appellant in Ext.P15, and Ext.P17 order was issued. It was specifically found in Ext.P17 that promotion for the year 1976 to 2000 of Assistant Grade III to Assistant Grade II (D) and for the year 1989 to 2000, in respect of Assistant Grade II(Depot) to Assistant Grade I (Depot) are to be revised and recast. The recast promotions were ordered year wise with reference to the vacancies which existed then and also as per the regulations; being the FCI Staff Regulations, specifically R.16(4). Hence, Sri B Ramachandran Pillai's promotion to Assistant Grade II could be effected only subsequently and he was hence not eligible for promotion to the post of Assistant Grade I (Depot) as granted by Ext.P5. The issue was again agitated in a writ petition challenging Ext.P17 which resulted in Ext.P19 W.P(C) No.6701/2004 & 37272/2003 ::13::
judgment and Ext.P20 which is impugned herein.
16. Ext.P19 also specifically noticed the ban on recruitment's and the ratio prescribed. The specific stand of the Corporation was that the retrospective promotions given to the petitioner was not against the post which were available and the petitioner could have been accommodated in Assistant Grade II only in the vacancy arising in 1979. The learned Single Judge who passed Ext.P19 did not find any reason to quash Ext.P17 order.
Only on the contention raised by the learned counsel that the crucial facts have not been examined, it was directed to be reconsidered. Such reconsideration was made in Ext.P20.
17. Ext.P20 also found that the petitioner was not entitled to promotion as AG II (D) during 1978 or AG I(D) during 1994. It has to be emphasized that the promotion made by Exts.P3 and P5 were on 26.11.1990 and 03.03.1999 and only notional benefits were given, with effect from the retrospective date. W.P(C) No.6701/2004 & 37272/2003 ::14::
Effectively the petitioner was appointed to the post only as on the date of Exts.P3 and P5. Ext.P20 found that the FCI Staff Regulations and the rules in force mandates promotions to be given to employees only if there is a clear vacancy and the individuals name comes within the zone of consideration. It was found that the order Ext.P3 dated 26.11.1990 granting retrospective effect from 22.12.1978, to the post of AG-II was issued without any vacancy on that date. It is also specifically found that the promotion order was issued without taking into consideration the inter-se seniority of direct recruits and promotees as per the provisions contained in the FCI Staff Regulations. Hence the promotions made from Class IV to Assistant Grade III itself was beyond the ratio and this resulted in the petitioner's seniority being revised. Admittedly posts set apart for direct recruits were not filled up for reason of the ban and the same was filled up in the very next year i.e, 1976. The Class IV employees were promoted W.P(C) No.6701/2004 & 37272/2003 ::15::
far in excess of their quota. In such circumstance, this Court would not interfere with Ext.P20. There is nothing placed on record as to what were the crucial facts that were not examined in Ext.P17. The contention of the petitioner even now is that the FCI has to examine whether there were vacancies to accommodate the petitioner as AG-III in 1978 itself. Twice the FCI has considered the issue and negatived it by Exts.P17 and P19. The petitioner has also retired long back. W.P (C) No. 6701/2004 would stand dismissed.
18. With respect to W.P(C) No.37272/2003, it is to be noticed that in Ext.P19 produced along with W.P(c) 6701/2004 filed by the petitioner therein, it was specifically noticed so in Paragraph 8:
"I make it clear that even if orders are passed, accepting the contention of the petitioner, as other persons had not agitated the matter after the W.P(C) No.6701/2004 & 37272/2003 ::16::
Division Bench judgment, they need not be given benefits automatically. Orders may be passed as far as possible within a period of three months from the date of receipt of a copy of this judgment."
19. Hence none else but the petitioner in O.P 24844/2002 (ie: the petitioner in W.P (C) No. 6701/2004) could have validly urged a contention against the revision of seniority made and the consequential reversion. W.P(C) 37272/2003 is dismissed for that reason also.
Both writ petitions are dismissed and the parties are left to suffer their costs.
SD/-
(K. VINOD CHANDRAN, JUDGE)
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P.A to Judge
W.P(C) No.6701/2004 & 37272/2003 ::17::